Can You Be Fired for Your Political Views?

It turns out I have both Republicans and Democrats among my employees, and after the last Presidential election I’ve overheard some very heated political discussions going on in the lunchroom.

Normally I don’t care about such things – I’m a big believer in free speech – but the last few weeks I’ve noticed that certain employees are refusing to work with other employees – one in particular, whose views are outspoken and loud — and I am concerned that this will affect our overall performance as a team.

Can I say anything and, if so, how? Can I tell my employees not to discuss politics during working hours? Can I get into legal trouble for discrimination or denying my employees their constitutional rights?”

The answer, unfortunately, is “it depends.”

There’s no question that the American people are politically polarized to an extent not seen since the Civil War. To paraphrase a famous William Butler Yeats poem, “things [are falling] apart; the center cannot hold.” Republicans are much more right-leaning and Democrats more left-leaning than they were when I was growing up, and the breakdown of the common Eurocentric, Judeo-Christian culture that formerly bridged the gap means that both sides are much more likely to see the other as a mortal threat to the nation’s welfare (for an excellent article on the yawning gulf between the American left and right, see “The Dying Art of Disagreement,” by Bret Stephens, available online at www.nytimes.com/2017/09/24/opinion/dying-art-of-disagreement.html).

Federal and state laws are all over the place when it comes to discrimination on the basis of political affiliation (as opposed to, say, race or religion), especially if you are a private employer. Contrary to what a lot of people believe, the First Amendment to the U.S. Constitution does not give employees the absolute right to voice their political opinions in the workplace. It merely prohibits government from passing laws or regulations that inhibit such speech. The First Amendment applies to government employers, and private employers who do business with the government, but not to private emploeyrs.

So, for example, in a recent federal case, a deputy sheriff in Virginia whose boss was up for re-election “liked” his boss’ opponent on Facebook and was terminated as a result. The court held that that one “like” alone was political speech and upheld the deputy’s claim for wrongful termination.

If your business has nothing to do with the government (it is entirely private, and does not rely on government funding or government contracts in any way), you might – might – be able to terminate this disruptive employee without legal repercussions. But be careful: if your company has any sort of government contract, he or she could assert a First Amendment defense.

Likewise federal anti-discrimination laws prohibiting racial, religious and sex discrimination do not include “political affiliation” as a protected class, but a number of cities and states (most notably California and Connecticut) prohibit political retaliation in their anti-discrimination laws – for a breakdown of the law in each state, see www.workplacefairness.org/retaliation-political-activity (answer to question # 1).

You also need to listen carefully to what your employees are talking about when they engage in political discussion on the job. Federal labor law protects on-the-job speech about union activities or “working conditions”. If an employee is advocating a candidate for public office because of his or her views on raising the minimum wage, and you have at least one minimum-wage employee, you might not be able to do anything about it.

What makes this reader’s situation so interesting is that the “retaliation” against the outspoken employee is coming not from the employer, but from his or her coworkers. The issue here appears to be not the “agitator” employee’s discussing politics on the job, but the fact that his or her ostracism by coworkers is adversely impacting the business’ performance. Therefore any solution should focus on the disruptive behavior (the ostracism) and not anyone’s speech or views.

So what should this reader do? Three things.

First, the employer should speak to a local employment lawyer to learn more about the rules that may apply in the city and state where the business is located.

Second (assuming the lawyer agrees), call a meeting of all employees to discuss the need for teamwork and co-operation in the workplace regardless of any disagreements, political or otherwise. The “agitator” employee should not be singled out for special attention, but the employer should make it clear that the company (1) respects all political viewpoints, (2) does not take sides on any political issue, party or candidate (if it has not engaged in lobbying activity), and (3) will not retaliate against any employee who expresses political views outside of the workplace (for example, on social media) as long as the employee does not imply that the company shares such views.

Finally, the employer should consider adopting a policy on political activity in the workplace. For guidance in preparing such a policy, see http://hrsimple.com/blog/politics-in-the-workplace. For an actual sample policy, see www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_021283.aspx.

Cliff Ennico (cennico@legalcareer.com) is a syndicated columnist, author and host of the PBS television series ‘Money Hunt’. This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com. COPYRIGHT 2017 CLIFFORD R. ENNICO. DISTRIBUTED BY CREATORS SYNDICATE, INC. Follow him at @cliffennico.